When ‘theft’ is not a crime

When ‘theft’ is not a crime "I filed a case for theft against my neighbor, Jose, for taking my bicycle. During the investigation, Jose argued that he took my bicycle on the belief that the same bicycle was his. However, the “barangay tanod” informed me that mere taking of personal property without the consent of the owner is theft. Now, I want to be enlightened whether Jose is criminally liable for taking my bicycle or not. What does the law say about this incident? Thank you very much,Manolo Dear Manolo,The Revised Penal Code of the Philippines, particularly Article 308 thereof, provides that theft is committed by any person, with intent to gain, but without violence against or intimidation of persons nor force upon things, who takes the personal property of another without the latter’s consent. The abovementioned provision was clearly explained by the Supreme Court in the case of People of the Philippines vs. Romualdo Rodrigo (G.R. No. L-18507, March 31, 1966, Ponente: Honorable former Chief Justice Querube C. Makalintal), where it enumerates the essential elements for the commission of the crime of theft, to wit: first, there must be taking of personal property second, the property belongs to another third, the taking away was done with intent to gain fourth, taking away was done without the consent of the owner and fifth, taking away was accomplished without violence or intimidation against persons nor force upon things.Applying the foregoing in your case, it is worthy to note that the second and third elements for the commission of the crime of theft are lacking—the property belongs to another, and taking was with intent to gain, respectively, because in the case of People of the Philippines vs. Engr. Rodolfo Yecyec, et al. (G.R. No. 183551, November 12, 2014, Ponente: Honorable former Associate Justice Jose C. Mendoza), the Supreme Court held: “If a person takes personal property from another believing it to be his own, the presumption of intent to gain is rebutted, and therefore, he is not guilty of theft xxx. Most importantly, one who takes personal property openly and avowedly under the claim of title in good faith is not guilty of theft even though the claim of ownership is later found to be untenable.”Thus, when Jose took the bicycle on the belief that it was his own, it appears that the crime of theft was not committed, and therefore, he may not be criminally liable for such act. In order to hold him criminally liable, it is vital for you to establish that he clearly knows that the property was not his and there was intent to gain on his part.We find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter.Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chaief Acosta may be sent to ." - https://www.affordablecebu.com/